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TMI Blog2004 (3) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... ejay had made application in January 2000 to Foreign Investment Promotion Board (FIPB) seeking clearance for investment in the appellant company. In the above application, it was indicated that the appellant company would be located at Bangalore, Karnataka and would be manufacturing a multi-cooking system, a unique product that allows cooking without addition of water and oil. It was also indicated that lumpsum payment in the form of technical know how fees of DM 2 million would be made in addition to the payment of drawing and design of net cost and engineering services fee of Euro 200 per day per person plus expenses. When approval was granted on 31-1-2000 the above payments were also indicated therein. The appellant was incorporated on 24-4-2000. On 18-4-2000, FIPB granted approval for transfer from Ceejay to the appellant. 3. M/s. Classic Cookware (P) Ltd. which was originally formed in July 1995 with Cookware Investment, Mauritius holding 100% shares had set up a manufacturing unit at Bangalore in 1998 and commenced production of special type of steel cookware in June 1999. The semi-finished/unpolished steel cookware components were imported and they were polished and asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pulated by the Parties) so many of the employees of Recipient as may Recipient reasonably require; 6.2.2 assist and advise Recipient with regard to the design, planning and construction, and operation of the Manufacturing Plant; 6.2.3 assist and advise Recipient with regard to the procurement and purchase to the equipment; 6.2.4 generally make available to Recipient all such advice, information, data and expertise reasonably required for the purposes of the completion and operation of the Project in terms hereof. 5. The project referred to in the above paragraph has been defined in Paragraph 1.1 of the agreement as under :- Project means the construction of the Manufacturing Plant and the completion of the Manufacturing process including the transfer of the required know-how and technical documentation for the deep drawing, Polishing, assembly and packaging of the Products. Terms regarding payment of licence fee are contained in paragraph 9.1 of the agreement which reads as follows - 9.1 In consideration of the Trade Mark and know-how licence hereby granted to Recipient, and subject to the obtaining of all relevant governmental approvals, Recipient shall pay to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e project which has not yet started and in respect of which no licence fee has become payable. What are being imported are the components of similar finished goods, which the appellant was importing, ever since it acquired the factory of Classic Cookware. The appellant, therefore, placed reliance on the ratio of the decision of this Tribunal in Collector of Customs, Bombay v. Maruti Udyog Limited, Gurgaon - 1987 (28) E.L.T. 390 affirmed by the Supreme Court in 1989 (41) E.L.T. A61. Reliance was also placed on the Larger Bench decisions of this Tribunal in S.D. Technical Service v. C.C., New Delhi - 2003 (155) E.L.T. 274 (Tri.- LB) and Panalfa Dongwon India Ltd. v. C.C., Mumbai - 2003 (155) E.L.T. 287. Reliance was also placed on the decision of this Tribunal in Ferodo India (P) v. Commissioner - 2002 (142) E.L.T. 343. 10. The learned DR would submit that the Commissioner (Appeals) was correct in adding the fee for technical know how etc. for arriving at the transaction value of the goods imported. Reliance was placed on the decisions of this Tribunal in TDT Copper Ltd. v. C.C., New Delhi - 2000 (120) E.L.T. 265 (T), Benara Udvog Pvt. Ltd. v. C.C., New Delhi - 2000 (118) E.L.T. 60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that purpose they were importing unpolished cookware components and subjecting them to various processes at unit at Bangalore. Such import was being made from April 2000 onwards. The proceeding before us relates to finalization of provisional assessment for the period from August 2000 to February 2001. From the documents available before us, it is seen that Ministry s approval was granted in communication dated 31-2-2000 on the application for foreign collaboration. In the above communication there is a direction to M/s. Ceejay Cookware Investments Ltd. for finalizing the agreement. The approval was to be valid for a period of two years from the date of issue and within that period they were to file the collaboration agreement with the Reserve Bank of India/Authorized Foreign Exchange Dealer. They were also directed to furnish copies of the agreement to the Administrative Ministry, Secretariat for Industrial Assistance (Foreign Collaboration II Section) and Department of Scientific and Industrial Research, Technology. It is further seen that the technical know how agreement was entered into only on 11-6-2001 much after the period of import in issue. A reading of the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utside India requires prior consent of Provider. It is submitted that the import by the appellant has to be treated as subject to the above condition. 15. We find no merit in the view taken by the Commissioner (Appeals). On going through the list of the items imported during the relevant period we are not able to identify them as related to the project. The appellant has explained that the testing equipment which is imported is used for processing unit at Bangalore which was acquired from Classic Cookware. On examining the terms of the agreement in detail we come to the conclusion that the payment made under the agreement has nothing to do with the imported goods. According to us, it is the ratio of the decisions of this Tribunal in Ferrodo India (P) Ltd., S.D. Technical Service and Panalfa Dongwon India Ltd. that has to be applied in the facts of this case and not that of Benara Udvog Pvt. Ltd. and Otto India Pvt. Ltd. In Benara Udyog Pvt. Ltd. the goods imported had direct connection with the drawings and technical know how agreement. In Otto India Pvt. Ltd. the facts were different. In that case, equipments were imported to obtain performance guarantee which was part of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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